Opinion
No. 20617/11.
10-28-2014
Zulane D. STEWART, Plaintiff, v. The CITY OF NEW YORK, Heights 75 Owners Corp., Tudor Realty Services Corp., and 66 Court Managers, Inc., Defendants.
Greenberg & Stein, P.C., New York, Zachary W. Carter, Corporation Counsel, Kaitlin Ashley Morris, Esq., Brooklyn, Plaintiff's Counsel. Bates & Baer, New York, Counsel to Heights 75 Owners Corp., and Tudor Realty Services Corp.
Greenberg & Stein, P.C., New York, Zachary W. Carter, Corporation Counsel, Kaitlin Ashley Morris, Esq., Brooklyn, Plaintiff's Counsel.
Bates & Baer, New York, Counsel to Heights 75 Owners Corp., and Tudor Realty Services Corp.
Opinion
JOHNNY L. BAYNES, J.
On Wednesday, December 29, 2010, at about 7 p.m., plaintiff Zulane D. Stewart (plaintiff), then 50 years of age, slipped and fell as she was walking on a pedestrian ramp leading from the crosswalk onto the sidewalk at the northwest corner of Court and Livingston Streets in Brooklyn. The pedestrian ramp, owned by the City of New York (the City), was abutting a mixed-use cooperative building located at 66–74 Court Street, a/k/a 75 Livingston Street, owned by defendant Heights 75 Owners Corp. and managed by defendant Tudor Realty Services Corp. (collectively, the cooperative). At the time of the accident, the pedestrian ramp was covered with ice and snow—a grim reminder of a two-day snow storm that ended about 60 hours earlier at about 7 a.m. on Monday, December 27th. According to the National Weather Service Climatological data from the JFK Airport: (1) the month of December 2010 experienced the greatest 24–hour snowfall of 10.5 inches on Sunday, December 26th, and the greatest snow depth of 16 inches on Monday, December 27th; (2) on Tuesday, December 28th, the day before the accident, 15 inches of snow remained on the ground, with the average air temperature staying below the freezing mark; and (3) on Wednesday, December 29th, the day of the accident, 14 inches of snow remained on the ground, with the average air temperature staying below the freezing mark.
It was the practice of the cooperative to clear ice and snow from the abutting sidewalk and the pedestrian ramps (see John Vankerckhove [the cooperative's superintendent] tr at pages 30:15–31:5). The City's Sanitation Yard BK2 (a/k/a Brooklyn North 2) had been clearing, before the accident, the neighborhood's primary, secondary, and tertiary roads, but had not started clearing the crosswalks, pedestrian ramps, hydrants, and bus stops until it completed snow removal from roadways (see David Kuperszmid [supervisor of Yard BK2] tr at pages 14:21–15:7, 16:4–8, 35:5–12, 36:17–21, 38–4:14).
As the result of the accident, plaintiff sustained a fractured left ankle which required surgery. In September 2011, plaintiff commenced this action against the cooperative and the City, claiming that either or both of them were negligent in failing to remove the snow and ice from the pedestrian ramp on which she slipped and fell. The cooperative and the City interposed their respective answers, asserting cross claims against each other. Later, plaintiff, by leave of court, added 66 Court Managers, Inc., the cooperative's sponsor, as a co-defendant. After the cooperative's sponsor failed to appear or otherwise respond to the amended complaint, plaintiff obtained a default judgment against it on January 13, 2013. After discovery was completed and a note of issue was filed on December 26, 2013, the cooperative and the City each timely moved for summary judgment dismissing all claims and cross claims against them.
The Cooperative's Motion for Summary Judgment
In moving for summary judgment, the cooperative maintains that it owed no legal duty to plaintiff to remove snow and ice from the pedestrian ramp on which she slipped and fell. It relies on Administrative Code of City of New York § 7–210(b), which imposes tort liability for accidents occurring on or after September 14, 2003, on commercial landowners, for failure to maintain a sidewalk in a reasonably safe condition, including negligent failure to remove snow and ice. The cooperative points out that pedestrian ramps are not part of the “sidewalk” within the meaning of § 7–210(b) (see Rodriguez v. Themelion Realty Corp., 94 AD3d 733 [2d Dept 2012] ; Vidakovic v. City of New York, 84 AD3d 1357, 1358 [2d Dept 2011] ). Rather, a pedestrian ramp is considered to be a part of the curb (see Ortiz v. City of New York, 67 AD3d 21, 27–28 [1st Dept 2009] [citing Administrative Code § 19–112 which classifies ramps as an element of the curb], revd on other grounds 14 NY3d 779 [2010] ).
The cooperative has established its prima facie entitlement to judgment as a matter of law by demonstrating that plaintiff slipped and fell on the pedestrian ramp. The close-up photograph marked at plaintiff's examination before trial on which she unmistakably indicated with a large “X” the pedestrian ramp as the site of her accident (see cooperative's Exhibit O, page 1), conforms to her pretrial deposition testimony (at pages 30:9–10, 31:11–13, 31:23–25, and 33:10–18) as well as with her notice of claim, both stating that the pedestrian ramp was the site of her accident (see Rodriguez, 94 AD3d at 733 ). Thus, the cooperative as the abutting landowner was not responsible under § 7–210(b) for removing snow and ice from the pedestrian ramp and cannot be held liable to plaintiff for her injuries. Further, the summary judgment record contains no evidence that the cooperative created a dangerous condition on the pedestrian ramp by cleaning (or attempting to clean) it from snow and ice. In opposition, plaintiff has failed to raise a triable issue of fact. Plaintiff's reliance on Administrative Code § 16–123(a) is misplaced. Although § 16–123(a) requires that landowners, inter alia, remove snow and ice accumulations from abutting sidewalks and gutters, this provision does not impose tort liability for a breach of that duty (see Booth v. City of New York, 272 A.D.2d 357, 358 [2d Dept 2000] ; Norcott v. Central Iron Metal Scraps, 214 A.D.2d 660, 661 [2d Dept 1995] ). Moreover, the term “sidewalk,” as used in both § 16–123(a) and § 7–210(b), has the same meaning and, therefore, excludes pedestrian ramps (see Vucetovic v. Epsom Downs, Inc., 10 NY3d 517, 521 [2008] [“the language of section 7–210 mirrors the duties and obligations of property owners with regard to sidewalks set forth in Administrative Code section( ) 16–123' “ (quoting Rep of Comm on Transp, at 4, Local Law Bill Jacket, Local Law No. 49 [2003] of City of NY); see also Schron v. Jean's Fine Wine & Spirits, Inc., 114 AD3d 659, 660 [2d Dept 2014] ). Because the cooperative owed no duty to plaintiff under the circumstances presented, its motion for summary judgment is granted, and the amended complaint and the City's cross claims insofar as asserted against the cooperative are dismissed.
The City's Motion for Summary Judgment
In moving for summary relief, the City argues that it was unreasonable to require it to have cleared the pedestrian ramp by the time of plaintiff's accident some 60 hours after the snow storm ended. As noted, the climatological data for the month of December 2010 indicated that the largest snow storm of December 2010 had left a total accumulation of 16 inches of snow two days before the accident, and that the average below-freezing temperatures for the ensuing two days, including the day of the accident, resulted in icy conditions at the time of the accident. The Sanitation Department's records indicate that, whereas the City had been cleaning the roadways in the days before and on the day of the accident, it had not yet reached the crosswalks and pedestrian ramps by the time of the accident.
In opposition, plaintiff argues that the City's failure to clean the cross walks and pedestrian ramps at the accident site, despite the passage of about 60 hours since the end of the snow storm, raises a triable issue of material fact of whether the City acted reasonably in its clean-up efforts. She relies on the Sanitation Department's authenticated records reflecting that, before the accident, no snow or ice had been removed from the crosswalks and pedestrian ramps at the accident location.
It is well-established that:
“A municipal defendant will not be held liable for accidents resulting from snow or ice on its sidewalks [or the areas for which it is responsible] unless a reasonable time has elapsed between the end of the storm giving rise to the icy condition and the occurrence of the accident. A reasonable period of time is the period within which the municipality should have taken notice of the icy condition and, in the exercise of reasonable care, remedied it by clearing the sidewalk [or the areas for which it is responsible] or otherwise eliminating the danger.”
(Cooke v. City of New York, 300 A.D.2d 338, 339 [2d Dept 2002] [internal quotation marks and citations omitted] ).
In Garricks v. City of New York (1 NY3d 22 [2003] ), plaintiff slipped and fell on ice two days after a ten-inch snowfall. The Court of Appeals upheld the trial judge's denial of a directed verdict in the City's favor, noting (at page 27 ) “we cannot say that plaintiff's evidence was insufficient to raise an issue of fact for the jury” as to the reasonableness of the City's actions in failing to clear the sidewalk where plaintiff slipped and fell.
In Shivers v. Price Bottom Stores, Inc. (289 A.D.2d 389, 390 [2001] ), the Second Department held (at page 390 ) that “[t]he evidence that the City submitted in support of summary judgment, which included climatological data, failed to establish, as a matter of law, that it did not have a reasonably sufficient period to remedy the snow and ice condition allegedly caused by a moderate snow storm which occurred five days before the plaintiff fell” (emphasis added). Similarly, in Crichton v. Pitney, Hardin, Kipp & Szuch (255 A.D.2d 155, 155–156 [1998] ), the First Department held that where the accident occurred five days after the winter storm ended, an issue of fact existed as to the reasonableness of the City's snow-clearing efforts. Most recently, in Rodriguez v. Woods (2014 N.Y. Slip Op 06887 ), decided on October 14, 2014, the First Department found that the plaintiff raised an issue of fact as to whether the ice on which she slipped formed within a sufficient amount of time before the accident for the City to have cleared it. In Rodriguez, the plaintiff's accident occurred within two days of the last of two back-to-back snowfalls that dumped at least 4½ inches of snow on the City.
Likewise, the summary judgment record here presents a question of fact for jury determination as to the reasonableness of the City's response time and effort (see Garricks, 1 NY3d at 27 ; Rodriguez, 2014 N.Y. Slip Op 06887, *2; Shivers, 289 A.D.2d at 390 ; see also Martinez v. City of New York, 20 AD3d 513, 515 [2d Dept 2005] ). Accordingly, the City's motion is denied.
The action is severed and continued against the City and 66 Court Managers, Inc. The caption is amended to read, in its entirety, as follows: